Summary:
Insurer moved to dismiss petition for benefits filed on behalf of minor
child of deceased worker on ground that 39-71-601, MCA (1991) requires
written claim "within 12 months...either by the claimant or someone
legally authorized to act for him in his behalf."

Held: Against
the background of case law and other statutes, WCC held no one was legally
authorized to act for the minor until a guardian or guardian ad litem
had been appointed for the purpose of seeking workers' compensation benefits,
even though the minor's mother was authorized to act on his behalf in
other contexts. Where a guardian had not yet been appointed, the statute
had not yet commenced and the motion to dismiss was denied.

Topics:

Constitutions, Statutes,
Regulations and Rules: Montana Code: 39-71-601, MCA (1991). Insurer
moved to dismiss petition for benefits filed on behalf of minor child
of deceased worker on ground that 39-71-601, MCA (1991) requires written
claim "within 12 months...either by the claimant or someone legally
authorized to act for him in his behealf." Against the background
of case law and other statutes, WCC held no one was legally authorized
to act for the minor until a guardian or guardian ad litem had been
appointed for the purpose of seeking workers' compensation benefits,
even though the minor's mother was authorized to act on his behalf in
other contexts. Where a guardian had not yet been appointed, the statute
had not yet commenced and the motion to dismiss was denied.

Benefits: Death Benefits:
Dependents. Insurer moved to dismiss petition for benefits filed
on behalf of minor child of deceased worker on ground that 39-71-601,
MCA (1991) requires written claim "within 12 months...either by
the claimant or someone legally authorized to act for him in his behealf."
Against the background of case law and other statutes, WCC held no one
was legally authorized to act for the minor until a guardian or guardian
ad litem had been appointed for the purpose of seeking workers' compensation
benefits, even though the minor's mother was authorized to act on his
behalf in other contexts. Where a guardian had not yet been appointed,
the statute had not yet commenced and the motion to dismiss was denied.

Guardians and Conservators:
Guardian ad Litem. Insurer moved to dismiss petition for benefits
filed on behalf of minor child of deceased worker on ground that 39-71-601,
MCA (1991) requires written claim "within 12 months...either by
the claimant or someone legally authorized to act for him in his behealf."
Against the background of case law and other statutes, WCC held no one
was legally authorized to act for the minor until a guardian or guardian
ad litem had been appointed for the purpose of seeking workers' compensation
benefits, even though the minor's mother was authorized to act on his
behalf in other contexts. Where a guardian had not yet been appointed,
the statute had not yet commenced and the motion to dismiss was denied.
Where insurer did not object to mother's qualifications, WCC appointed
her guardian ad litem.

¶1 The petitioner in this case
is Randell James Simons-Tollefson (Randell), the minor son of Randell
James Tollefson (Tollefson).(1) Tollefson
was killed August 2, 1992, in a trucking accident. At the time of his
death he was living with, but not married to Shelly Simons (Shelly), who
is Randell's mother. Randell was born posthumously, approximately four
months after the accident.

¶2 The Petition for Trial alleges
Tollefson died within the course and scope of employment with Big Z Trucking.
The State Fund denies liability. Among other defenses, it argues that
the claim is barred by section 39-71-601, MCA, which requires that a claim
be filed within one year of the accident. Both parties agree that no claim
was filed within the one-year limitations period, and the State Fund moved
to dismiss.(2) The motion was briefed and
orally argued. During oral argument the Court questioned counsel whether
Shelly has legal standing to pursue the claim on behalf of her son lacking
her appointment as his general guardian or his guardian ad litem.
At the Court's request, the parties filed supplemental briefs addressing
the question, and the matter is now deemed submitted for decision.

I. Death Benefits

¶3 Under section 39-71-721,
MCA (1991), the "beneficiaries" of a worker who dies as a result of a
work-related injury are entitled to benefits. The section provides in
relevant part:

39-71-721. Compensation
for injury causing death - limitation. (1)(a)If an injured
employee dies and the injury was the proximate cause of such death,
then the beneficiary of the deceased is entitled to the same compensation
as though the death occurred immediately following the injury. A beneficiary's
eligibility for benefits commences after the date of death, and the
benefit level is established as set forth in subsection (2).

. . . .

(2) To beneficiaries as
defined in 39-71-116(3)(a) through (3)(d), weekly compensation benefits
for an injury causing death are 66 2/3% of the decedent's wages. The
maximum weekly compensation benefit may not exceed the state's average
weekly wage at the time of injury. The minimum weekly compensation benefit
is 50% of the state's average weekly wage, but in no event may it exceed
the decedent's actual wages at the time of death.

(3) To beneficiaries as
defined in 39-71-116(3)(e) and (3)(f), weekly benefits must be paid
to the extent of the dependency at the time of the injury, subject to
a maximum of 66 2/3% of the decedent's wages. The maximum weekly compensation
may not exceed the state's average weekly wage at the time of injury.

Section 39-71-116(3)(b), MCA,
provides that a minor child of a deceased worker is a beneficiary, thus
Randell's entitlement to benefits is governed by subsection (2) of section
39-71-721, MCA.

¶4 Randell's claim is also
governed by sections 39-71-604 and -601, MCA. Section 39-71-604, MCA,
requires that a beneficiary seeking death benefits must file a written
claim.(3) Since Randell must file a claim,
he is a "claimant" and therefore subject to section 39-71-601, MCA, which
provides:

39-71-601. Statute
of limitation on presentment of claim - waiver. (1) In case
of personal injury or death, all claims must be forever barred unless
presented in writing to the employer, the insurer, or the department,
as the case may be, within 12 months from the date of the happening
of the accident, either by the claimant or someone legally authorized
to act for him in his behalf.

(2) The department may waive
the time requirement up to an additional 24 months upon a reasonable
showing by the claimant of:

(a) lack of knowledge of
disability;

(b) latent injury; or

(c) equitable estoppel.

II. Standing of Shelly

¶5 As a general rule, albeit
one with exceptions, parents do not have standing to enforce the rights
of their children. Section 40-6-232, MCA, provides, "The parent, as such,
has no control over the property of the child." A claim for benefits is
a property right. Further, section 27-1-511, MCA, provides:

A minor may enforce his
rights by civil action or other legal proceedings in the same manner
as a person of full age except that a guardian must conduct
the same. [Emphasis added.]

A guardian becomes such "by
acceptance of a testamentary appointment or upon appointment by the court."
§ 72-5-201, MCA. Thus, while parents may be "guardians" of their children
in a general and loose sense, absent "appointment by the court" they are
not guardians as defined in Montana statutes.

¶6 At least three Montana cases
have addressed the status of a parent to act on behalf of a child in absence
of the parent's appointment as a guardian or a specific statute authorizing
the parent to act without appointment. In Maloney v. Schandelmier,
65 Mont. 531, 212 P.2d 493 (1923), a minor child was named a defendant
in a lawsuit and served with a summons. He gave the summons to his father
shortly after service but failed to appear, leading to the entry of a
default against him. The trial court set aside the default and appointed
the father guardian ad litem for purposes of defending the case.
The Supreme Court affirmed, holding that prior to appointment of the guardian
ad litem the "defendant [minor] could not have appeared, had
he so desired." 65 Mont. at 535, 212 P.2d at 494. According to the Court,
"the rule . . . seems well established that no legal right of parentage
or of natural guardianship will enable one to act for an infant without
an appointment as guardian . . . ." Id. The Court also noted:
"It is the well-established policy of the law to protect the rights of
minors, and in this respect the courts are charged with vigilance." 65
Mont. at 536, 212 P.2d at 494.

¶7 Lazich v. Belanger,
111 Mont. 48, 105 P.2d 738 (1940), is even closer on point. In that case,
a minor child had a personal injury claim against the city of Butte. Under
statutes governing claims against the city, claimants were required to
provide written notice of their claims within 60 days of injury. Neither
the injured child nor his parents gave the required notice, however, thereafter
the child's mother was appointed his guardian, promptly gave notice to
the city, and then filed a personal injury action on behalf of her son.
Upon demurrer invoking the 60-day notice requirement, the District Court
dismissed the complaint. The Supreme Court reversed, holding that, even
though the notice statute was applicable to a minor, the rights of the
minor should not "be prejudiced by the omission of the parents to give
the notice." 111 Mont. at 53, 105 P.2d at 739. Noting the minor was not
able to act on his own, the Court stated:

It would be unreasonable
to require that to be done which plaintiff was incapable of doing. Neither
should his right of action be frittered away because of the omission
of the parents to give the notice. To so hold would be to impute the
negligence of the parents to the child - a doctrine which has long since
been repudiated by this court.

Id.

¶8 The third case is a workers'
compensation case involving death benefits. In Davis v. Industrial
Accident Board, 92 Mont. 503, 15 P.2d 919 (1932), the father of two
children died as a result of an industrial accident. The children's mother
filed a claim for death benefits on her and the children's behalf. The
claim was accepted. Thereafter, the mother petitioned for a lump-sum conversion
which encompassed both her and the children's future benefits. The Industrial
Accident Board approved the settlement and the lump sum was paid. The
mother then died and a guardian was appointed for the children. The guardian
sought reinstatement of death benefits, arguing that the mother had no
authority to bind the children since she had not been appointed the children's
legal guardian. The Supreme Court agreed:

. . . The parent, as such,
has no control over the property of the child. . . .

The board is not authorized
to act [on a lump-sum request] until an application in writing is made
by the beneficiary. A minor is not authorized by the Compensation Act,
or by any other provision of the law, to make such application in his
own behalf. Such authority as to a minor is contained in the Compensation
Acts of a number of the states.

At the time of the passage
of the Compensation Act, there were in force, and there now are in force,
general statutes relating to the appointment, qualifications, powers,
and duties of guardians. It was the intention of our Legislature, in
a fact situation such as exists here, that these general statutes should
apply. Under the facts in this case the only person authorized
to sign the application [for lump-sum settlement] is the duly appointed,
qualified, and acting guardian of the minors.

92 Mont. at 510, 15 P.2d at
921 (emphasis added; citations omitted). Since the mother had not been
appointed legal guardian for the children, the Court held, "The order
of the board allowing the full lump sum settlement was and is null and
void because no application therefor was filed as provided by law or at
all." 92 Mont. at 511, 15 P.2d at 922.

¶9 There are currently a number
of statutory exceptions to the general, well-established rule laid down
in the cited cases. Section 27-1-512, MCA, provides:

Either parent may maintain
an action for the injury to a minor child and a guardian for injury
to a ward when such injury is caused by the wrongful act or neglect
of another. Such action may be maintained against the person causing
the injury or, if such person be employed by another person who is responsible
for his conduct, also against such other person.

On its face, the section authorizes
the parent, without resort to appointment as a guardian, to bring a personal
injury action on behalf of a minor child. The section is further reflected
in Rule 17(c), Mont.R.Civ.P., which authorizes a civil action to be commenced
on behalf of a minor by the minor's "next friend," a term which means
"[o]ne acting for benefit of infant, or other person not sui juris (person
unable to look after his or her own interests or manage his or her own
lawsuit), without being regularly appointed guardian."
Westlaw Edition of Blacks Law Dictionary (emphasis added). But the statute
applies only to personal injury actions, not to workers' compensation
claims.

39-71-602. Statute
of limitation not to apply during minority or mental incompetency unless
guardian appointed. No limitation of time as provided in 39-71-601
or in this chapter, known as the Workers' Compensation Act, shall run
as against any injured worker who is mentally incompetent
and without a guardian or an injured minor under 18
years of age who may be without a parent or guardian. A guardian in
either case may be appointed by any court of competent jurisdiction,
in which event the period of limitations as provided for in 39-71-601
shall begin to run on the date of appointment of such guardian or when
such minor arrives at 18 years of age, whichever date is earlier.

As the bolded language states,
the section extends to "injured workers", including minors. It tolls the
limitations period specified in section 39-71-601, MCA, during minority
but only if the minor has neither guardian nor parent. By necessary implication,
cf. Montana State University v. Ransier, 167 Mont. 149, 152,
536 P.2d 187, 189 (1975) ("When a statute grants power in general terms,
it includes, by implication, a grant of all powers incidental and necessary
to make the general grant effective"), both a guardian and
a parent not appointed guardian are authorized to file a claim on behalf
of a minor who is injured in a work-related accident. But the section
says nothing about the parent of a beneficiary of an injured worker. It
does not authorize the parent of a beneficiary to execute a claim on the
minor's behalf, although as a practical matter the parent's filing of
a claim on his or own behalf, as a beneficiary spouse, may trigger benefits
allocable to the minor, section 39-71-723, MCA.(4)
In this case, Shelly concedes she is not the spouse of Tollefson and failed
to file any claim, either on her own behalf or on Randell's behalf, within
the time permitted under section 39-71-601, MCA.

¶11 Finally, I consider the
effect of section 39-71-604(2), MCA, which requires that a claim be filed
for death benefits. It provides:

(2) If death results from
an injury, the parties entitled to compensation or someone in their
behalf shall file a claim with the insurer. The claim must be accompanied
with proof of death and proof of relationship, showing the parties entitled
to compensation, certificate of the attending physician, if any, and
such other proof as may be required by the department.

The section does not define
"someone on their behalf," however, under existing statutes and precedents,
the only person authorized to act on behalf of the beneficiary-minor is
a guardian.

¶12 In light of the case law
cited above, and the lack of an express statutory exception to that law,
I conclude that Shelly is not authorized to file and pursue a claim
on Randell's behalf until and unless she is appointed his guardian or
guardian ad litem.

III. Appointment of Shelly
as Guardian Ad Litem

¶13 The Supreme Court has previously
held that the Workers' Compensation Court has jurisdiction to appoint
a guardian ad litem for the beneficiary of a deceased worker.
Hock v. Lienco Cedar Products, 194 Mont. 131, 137, 634 P.2d 1174,
1177-78 (1981). The petition expressly requests this Court to appoint
Shelly guardian ad litem for Randell. (Prayer for relief.) State
Fund does not challenge her qualifications to serve as guardian and she
has no conflict of interest, compare with Hock. Therefore, before
considering the merits of the Motion to Dismiss, the Court appoints Shelly
as guardian ad litem for Randell.

IV. The Motion to Dismiss

¶14 The discussion of Shelly's
standing is dispositive of the Motion to Dismiss. As that discussion shows,
until appointment of Shelly by this Order, no one was authorized to act
for Randell. The limitations period prescribed in section 39-71-601, MCA,
is inapplicable until the appointment of a guardian or guardian ad
litem. Lazich v. Belanger, supra. Since no guardian was
appointed until now, the limitations period commences running as of the
date of this Order. The Motion to Dismiss must therefore be denied.

ORDER

¶15 For the reasons set forth
in the foregoing memorandum,

IT IS HEREBY ORDERED that:

¶16 1. Shelly Simons, who is
the natural mother of the petitioner, Randell James Simons-Tollefson,
is appointed to act as petitioner's guardian ad litem with all
the powers and responsibilities of such office.

¶17 2. The Motion to Dismiss
is denied.

¶18 3. This matter shall be
set for trial with regard to all remaining issues.

1. The State
Fund does not dispute that Tollefson was Randell's father.

2. Motions
to dismiss attack the facial sufficiency of the initial pleading. See
Rule 12(b), Mont.R.Civ.P. The petition in this case lists a June 11, 1998
Claim for Compensation as an exhibit. Since the parties agree that no
claim was filed within the one-year limitations period, the Court need
not be overtechnical in construing the petition and will address the issue
pursuant to the motion to dismiss.

3. The pertinent
part of the section 39-71-604, MCA, is set out in paragraph 11 below.

39-71-723. How compensation
to be divided among beneficiaries. Compensation due to beneficiaries
must be paid to the surviving spouse, if any, or if none, then divided
equally among or for the benefit of the children. In cases where beneficiaries
are a surviving spouse and stepchildren of such spouse, the compensation
shall be divided equally among all beneficiaries. Compensation due to
beneficiaries, as defined in 39-71-116(3)(e) and (3)(f), where there
is more than one, shall be divided equitably among them, and the question
of dependency and amount thereof shall be a question of fact for determination
by the department.

Since the section requires
payment to the spouse even where there are other beneficiaries, such payment
discharges the insurer's obligation to other beneficiaries.